Articles, Alerts & Perspectives

The PIOGA Press

(by Keith J. Coyle)

The Pipeline and Hazardous Materials Safety Administration (PHMSA) is expected to finalize new regulations for issuing emergency orders in the coming weeks. The new regulations represent the culmination of a rulemaking process that PHMSA began two years ago during the final months of the Obama administration.

The Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (PIPES Act) gave PHMSA the authority to issue emergency orders if “an unsafe condition or practice, or a combination of unsafe conditions and practices, constitutes or is causing an imminent hazard[.]” 49 U.S.C. § 60117(o)(1). The PIPES Act directed PHMSA to establish temporary regulations for exercising that authority by no later than August 21, 2016, and final regulations by no later than March 19, 2017.

On October 14, 2016, PHMSA adopted temporary regulations for issuing emergency orders in an interim final rule. Federal agencies can adopt regulations in an interim final rule without providing the public with prior notice or the opportunity to comment, provided that good cause is shown under the Administrative Procedure Act. Stating the statutory deadline in the PIPES Act met the good cause standard, PHMSA established the temporary emergency order regulations as an interim final rule and provided a 60-day, post-publication comment period.

The temporary regulations set out the procedural requirements for issuing emergency orders and obtaining administrative review. Like the good cause exception in the Administrative Procedure Act, the PIPES Act authorizes PHMSA to issue an emergency order without providing prior notice or the opportunity for a hearing if an imminent hazard exists. PHMSA must consider certain factors before issuing an emergency order, and the order itself must contain specific information about the nature of the imminent hazard, the entities affected, the restrictions, prohibitions, or safety measures imposed, and the procedures for obtaining relief. …

Pratt’s Energy Law Report
(by James Curry, Keith J. Coyle, and Brianne K. Kurdock)
The Pipeline and Hazardous Materials Safety Administration recently published an advance notice of proposed rulemaking asking for public comment on whether the Agency should change its class location requirements for gas pipeline facilities. The authors of this article discuss the class location requirements, the notice of proposed rulemaking, and what’s next.
The Pipeline and Hazardous Materials Safety Administration (“PHMSA” or the “Agency”) has published an advance notice of proposed rulemaking (“ANPRM”) in the Federal Register asking for public comment on whether the Agency should change its class location requirements for gas pipeline facilities. Specifically, PHMSA sought comment on alternatives to pipe replacements driven by class location changes. Adopted nearly five decades ago, PHMSA’s class location requirements use population density and surrounding land uses to categorize the potential risk that gas pipeline facilities pose to public safety.
OVERVIEW
The Agency asked the public to comment on whether the class location requirements should be updated to account for recent developments in the pipeline industry, particularly the widespread use of integrity management (“IM”) principles and new technologies. The current regulations require operators to reduce pressure, replace pipe, or conduct hydrostatic pressure testing in response to class location changes, and PHMSA is considering whether other alternatives should be available. Comments were due to the Agency on or before October 1, 2018.
The ANPRM is PHMSA’s first new pipeline safety rulemaking proceeding in the Trump era. The Agency began examining the need to modernize the class location regulations several years ago in response to a mandate that Congress included in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, and PHMSA is framing the ANPRM as an extension of that earlier effort. …

PGHTECH FUSE

(by Justine Kasznica)

Mobility can be broadly defined as the movement of people, goods and information, and is consciously used here as a catchall term to describe a rapidly evolving ecosystem. Advancements in machine learning, artificial intelligence (AI), big data and connected systems (Internet of Things-IoT), applied against a backdrop of increased social and cultural acceptance of new technologies (such as autonomous systems, as well as enhanced capabilities of electric batteries and power/communications systems), as well as new economic models (such as the shared economy and Robot as a Services (RaaS) business models), have led to an unprecedented disruption of industries within the mobility ecosystem.

These industries range from automotive, rail, shipping, aviation industries to last-mile logistics and commercial space – essentially, any industry that builds or supports vehicles or systems that move on or through land, air, sea and space.

It is difficult to ignore the changing mobility landscape. For perspective, market forecasts predict that the IoT market alone will grow to $267 billion by 2020 and $640 Billion by 2022, and that as much as half of the IoT market will be attributable to spending on discrete manufacturing, transportation and logistics.

Despite these optimistic projections, full realization of the beneficial potential of this new era of mobility will be impossible unless industry participants give adequate priority and attention to critical policy issues related to system functionality/safety, data rights, security/rogue users, and product liability that, if left unaddressed, will become a barrier to widespread and sustainable adoption of these technologies. Specifically, industry participants should consider the following.

• System Functionality; Safety. “Is it safe?” This is the threshold question asked by those interacting with any autonomous or AI-enabled mobility technology. …

Pittsburgh Post-Gazette 

(by Keith J. Coyle)

A pipeline incident that occurred in Beaver County earlier this week is bringing increased attention to the issue of pipeline safety.  Many residents are concerned about the pipelines that pass by their homes, schools, and places of business.  Some are even going a step further and calling for a statewide moratorium on all pipeline construction.

I’ve spent the past decade working on pipeline safety issues as an attorney-advisor for the Pipeline and Hazardous Materials Safety Administration (PHMSA), a member of Governor Wolf’s Pipeline Infrastructure Task Force, and an attorney in private practice.

I understand the anxiety that people feel after a pipeline incident.  They want to know that their families are safe, and that the folks in charge are doing what is necessary to protect public safety.

Every incident serves as a reminder of the additional work that needs to be done to make pipelines safer.  But that does not mean that we should ignore the important role that pipelines play in improving our lives or disregard the efforts that are being made to build upon the industry’s strong safety record.

Pipelines are a critical part of the nation’s energy infrastructure. There are more than 2.7 million miles of pipelines in the United States, and Pennsylvania is home to approximately 91,000 miles of pipelines, according to the latest PHMSA data.

These lines carry the energy products that heat our homes, run power plants, provide fuel for transportation, and deliver the feedstock that is used to make countless consumer goods.

Pipelines are the safest and most reliable means of transporting energy products. The Frasier Institute, a Canadian-based research organization, found in a recent study that pipelines are 4.5 times safer than other comparable modes of energy transportation. …

The PIOGA Press

(by Jean M. Mosites)

On August 23, the Commonwealth Court issued a unanimous opinion in The Marcellus Shale Coalition v. Department of Environ mental Protection and Environmental Quality Board, 573 M.D. 2016 invalidating portions of the new prepermit process created in 25 Pa. Code §§ 78a.1 and 78a.15(f) and (g), pertaining to new “public resources.” The Marcellus Shale Coalition (MSC) challenged the provisions as unlawful and unreasonable, seeking declaratory and injunctive relief.

There is no statutory right to judicial review of new regulations in Pennsylvania. Such challenges must proceed in the form of a declaratory judgment action in the Commonwealth Court or “as applied” in an appeal before the Environmental Hearing Board on a case-bycase basis. The latter course can be duplicative, lengthy and costly, offering only piecemeal relief. MSC challenged portions of the new Chapter 78a regulatory package through a declaratory judgment action in October 2016, seeking relief for its members from regulations beyond the scope of the Environmental Quality Board’s authority, regulations with high cost and little discernible benefit.

Count I of MSC’s Petition for Review challenged Sections 78a.15(f) and (g) and the related definitions contained in Section 78a.[1] of the Chapter 78a regulations. The provisions created a new pre-permitting process for well permit applicants, requiring new notice and comment opportunities in addition to those expressly authorized by Act 13, as adopted in 2012.

Following MSC’s Petition for Review, the Commonwealth Court preliminarily enjoined application of portions of the regulations on November 8, 2016.1 MSC filed an application for partial summary relief on Count I on August 31, 2017. Pending review of that application, the Pennsylvania Supreme Court affirmed the grant of preliminary injunctive relief as to Count I on June 1, 2018. …

The Legal Intelligencer 

(by Lizzy McLellan)

As more large firms restructure into multidisciplinary industry-focused groups, the niche practices emerging resemble some of the services midsize firms have been offering for years, or sometimes decades.

With increasing competition in the legal industry, and Big Law more often competing for the middle-market work midsize firms were built on, midsize firm leaders have been bullish about maintaining and expanding their specialized practices.

Babst, Calland, Clements and Zomnir, based in Pittsburgh, was built on a niche focus in environmental law from the start, and has expanded on that over the years, managing shareholder Donald Bluedorn said.

“Our philosophy is to pick specific areas and put together teams with as much sophistication as anyone in the country,” Bluedorn said, then deliver those services “at a lower price point.”

Since, the firm has added other niche practices that grow naturally from its environmental roots. ”We don’t just look for bolt-on practices,” Bluedorn said.

So when the Marcellus Shale play created business opportunities in Pennsylvania, the firm seized on the opportunity to grow an energy practice, which would co-mingle well with environmental law. And when it saw a chance to get involved with pipeline safety, it built on an already established regulatory practice in Washington, D.C., as well as the energy and environmental practices.

“We like to see multiple touchpoints with these areas we have,” Bluedorn said. “We really try to do a very conscious, well-thought-out approach.”

Most recently, the firm has built on that regulatory practice again, bringing together a mobility, transport and safety group to handle matters in the emerging area of unmanned aircraft, driverless cars and space technology. Timothy Goodman, a former U.S. …

The Legal Intelligencer

(by Krista-Ann M. Staley and Amie L. Courtney)

While the setting may be significantly less formal—think a public works garage or community center gymnasium rather than a marble-columned historic landmark—standing requirements apply in the context of a zoning hearing as they do in a more formal courtroom setting. Therefore, whether representing a party seeking a zoning approval, a zoning hearing board or governing body considering a zoning application, or an objector, it is important to understand how to navigate the issue of standing during the initial proceeding.

The Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101, et seq., (MPC), the state’s zoning enabling legislation, clearly provides a “landowner” with standing to file a zoning application or pursue a zoning appeal. The statute broadly defines “landowner” as including the owner of the subject property, the holder of an option to purchase the property, an authorized lessee, or “other person having a proprietary interest in land”. However, Pennsylvania law does not provide a bright-line standard to determine whether a party has standing to object in a zoning proceeding. This is an important determination because a party with standing to object may cross-examine an applicant’s witnesses and present its own witnesses and evidence. A party with standing may also appeal the final determination. As a result, participation by an objector can significantly impact the path and outcome of a zoning case.

Pennsylvania case law provides a general framework to determine whether an objector has procedural and substantive standing, both of which are required to obtain “party” status in a zoning hearing. To have substantive standing, an objector must be “aggrieved” by having a direct interest in the subject of the proceeding that would be adversely affected by the action. …